From The Law Offices of Brian A. Raphan, P.C.

legal news

This holiday season is ripe for a lot of spam, online scams, viruses, malware and ransomware. All can be at the least annoying and at best extremely costly.

Here are some tips I use to stay safe when online:

•Do not click to open attached files in your email that come from unknown senders. Files with extensions .zip, .pdf, .exe should be a red flag. Also, even if sender appears to be known, i.e. Chase Bank, UPS, that doesn’t mean it is from Chase bank or UPS. A known sender means a friend you have emailed before. Note that even if it is a known sender, if you are not expecting anything be cautious. Look for errors in the message or language. If unsure, call or email that person or company separately—not as a reply email— and ask them if they sent you something.

•Think twice before clicking on links in emails. If your bank or credit card sends you an email with a link, don’t click it. Log in via your bank or credit cards website from your browser. The ‘from’ column of your email may be disguised and read like a familiar or bonafide email address but may actually be from elsewhere.

• Be cautious of any suspicious pop ups of applications showing up on your pc.

• Most email applications will allow you to mark spam as ‘spam’ or ‘junk’. This is a good practice If you get frequent spam from same sender. It should keep the spam from showing up again in your inbox.

A New Jersey appeals court rules that an ugly dispute between two brothers over their mother’s placement in a nursing home did not amount to domestic violence. R.G. v. R.G.(N.J. Super. Ct., App. Div., No. A-0945-15T3, March 14, 2017).

R.G was the attorney-in-fact and primary caregiver for his parents. After R.G.’s mother fell ill, R.G. wanted to place his mother in a nursing home. R.G’s brother objected to this plan, but R.G. went ahead and had his mother admitted to a nursing home without his brother’s consent. R.G.’s brother sent angry and threatening texts and emails to R.G. as well as emails expressing his desire to find a way to care for their parents in their home. Eventually the men got into a physical altercation in which R.G.’s brother shoved R.G.

R.G. filed for a restraining order against his brother under the Prevention of Domestic Violence Act. The trial judge ruled that R.G. was harassed and assaulted and issued the restraining order. R.G.’s brother appealed, arguing that R.G. did not meet the definition of a victim of domestic violence.

The New Jersey Superior Court, Appellate Division, reverses, holding that R.G.’s brother’s actions did not amount to domestic violence. The court finds that there was insufficient evidence that R.G.’s brother purposely acted to harass R.G., ruling that “a mere expression of anger between persons in a requisite relationship is not an act of harassment.”

As an elder law attorney I come across many clients that are looking to pass their wealth to their children–but how about passing on some of your hard earned financial wisdom as well. Read on and you’ll find great ways to pass along your most prized asset…your wisdom.

The Money Talk, capital “M” and capital “T,” is overrated. As with the Sex Talk, children can sense that one is coming. And if they get antsy, your words will go in one ear and out the other.

Tempted to hand over a notecard instead? Your first principles may fit on it, and making one for a new graduate is a fine thing to do. But there isn’t much space for storytelling.

So in this season of transitions, consider the old-fashioned letter. It’s long enough to tell some tales to bolster your advice, and if it’s written with enough soul, there’s a good chance the recipient will keep it for a long time. Plus, it’s a literal conversation piece, since the good letters will inspire more curiosity about how the writers oversee their own financial affairs.

A good letter, according to Ms. Palmer, should include at least one story about a large financial challenge and another one about a big money triumph. Then, include a list of crucial habits and the tangible things they have helped the family achieve.

HEED YOUR IGNORANCE: Quite often, the best stories and takeaways come from the biggest mistakes, and so it is with Gail Shearer, Ms. Palmer’s mother. Lesson No. 6 in her letter is this one: Never invest in anything you don’t totally understand.

How many times did she and her husband ignore this advice? “Oh, three or four,” she said in an interview this week. Ms. Shearer, 65, a retired consumer health advocate who spent years at Consumers Union, proceeded to tick them off.

There was the tax shelter. “In the 1980s, they were the thing,” she said. “We drank the Kool-Aid, just a little bit.” And then suffered through many years of complex tax filings, which nobody tells you about during the sales pitch.

Then, there was some variable life insurance. And an annuity. And an adviser who promoted a “black box” investment strategy, as if that were a good thing.

The couple did not lose a lot of money, though if they had put it all in indexed mutual funds in the first place (See Lesson No. 5 in the letter). as they did with most of the rest of their savings, they would have more money now.

So better that their daughters avoid any such blunders from the beginning.

BEWARE OF GENIUS: The Palmer-Shearer clan is not the only one with a letter-writing tradition. Four years ago, John D. Spooner, an investment adviser and writer, collected an entire book of them called, “No One Ever Told Us That: Money and Life Letters to my Grandchildren.”

In it, Mr. Spooner takes to its logical conclusion Ms. Shearer’s advice about not understanding something: Don’t trust the person who claims to be omniscient either.

In a chapter titled “Beware of Genius,” Mr. Spooner tells the story of an impenetrable Alan Greenspan speech he once heard. He instructs his grandchildren to consider the following hypothetical: “If someone cannot explain his economic concepts to you in several simple paragraphs, then you should view those concepts as probably being dangerous to your financial health.”

STICK TO YOUR SELLING PLANS: The most memorable tale in Mr. Spooner’s book is about his failure to sell his seven-figure holding in Citigroup stock before the economic collapse in 2008.

As an investment adviser with the firm, he thought he knew it well enough. He had made plans to sell after any change in leadership. But the new chief executive liked him. “We can be blinded by flattery from the seats of power,” he wrote to his grandchildren. “Be aware of this in your business lives.”

Selling something that is still valuable is the hardest part of any trade, he added. So if you can’t name three good reasons to continue owning something, he warned his grandchildren, then it’s time to sell. In retrospect, he did not have three good ones, but he kept the stock anyway as it fell to $1 a share. (It had been above $55.) He held on to it as the stock rebounded and made some money buying shares of other blue-chip companies during the downturn.

Another idea that I’ll include in my own letter someday: You could just follow Ms. Shearer’s lead and invest in a variety of index funds that own every stock in a particular market, thus avoiding this sort of concentrated stock risk.

BUDGETS ARE ABOUT VALUES It may be tempting for any of Ms. Shearer’s daughters to gloss over Lesson No. 8, where she exhorts them to keep track of their spending. How boring, right? But almost in passing, she seizes on one of the least understood, yet most essential, pieces of money wisdom.

“When Daddy and I first got married, we kept the roughest of notebooks and would sit down once a month and try to figure out what happened to our finances,” she wrote. “Communication, and shared values/goals about money, are really important.”

Budgets are about dollars, sure. But they’re also about values. What you spend says a lot about what you stand for, and if you don’t like what your own notebook says about you, try to make it look different next month.

Fortunately for Ms. Shearer and her husband, Christopher Palmer, 68, a filmmaker and professor, they mostly agreed on what they should see. Saving for their daughters’ education was the big goal, and retirementwas a close second. They managed the first with some parental debt, which they’ve now repaid. As for the second, they’re waiting until age 70to collect Social Security, so the checks will be bigger.

With the publication of their daughter’s book, written correspondence may be among their biggest legacies. Mr. Palmer would leave a letter for the girls for each night he was away from home when they were growing up. The family eventually collected them in a bound volume.

Who will get his millions?

This article in USA Today states; Prince left no will, according to documents filed Tuesday by his sister, Tyka Nelson, in probate court for Carver County, Minn., where the beloved pop icon died suddenly last week at his Paisley Park compound.

“The Decedent died intestate,” Nelson said in her petition for the appointment of a special administrator to deal with Prince’s estate, which has been widely reported to be valued at $300 million.

Nelson said her brother left no surviving spouse, no children and no parents. Besides Nelson, his full sister, he is survived by half-brothers and half-sisters, whom Nelson names in her petition as “interested parties” to the Prince estate to her knowledge thus far.

The adult half-siblings are: John Nelson, Norrine Nelson, Sharon Nelson, Alfred Jackson and Omar Baker. She also listed another half-sister, Lorna Nelson, who has died and did not have children. There was at least one other sibling identified as a stepbrother, Duane Nelson, who also has died, but Tyka Nelson did not list him as an interested party.

“I do not know of the existence of a Will and have no reason to believe that the Decedent executed testamentary documents in any form,” Tyka Nelson stated in the petition.

It’s possible there is a will and Nelson doesn’t know about it, but no one has come forward yet to say so. Calls to the office of Prince’s longtime attorney, L. Londell McMillan, were not answered.

When someone dies intestate, without a will, a probate court takes over the administration of the decedent’s estate and distribution of assets, which Nelson listed as “Homestead, other real estate, cash, securities and Other.”

Her petition said Prince had “substantial assets consisting of personal and real property that requires protection.” He “owned and controlled business interests that require ongoing management and supervision.” And he “has heirs whose identities and addresses need to be determined.”

She said “an emergency exists to the extent that the appointment should be made without notice because immediate action and decisions need to be made to continue the ongoing management and supervision of Decedent’s business interests; and because the names and addresses of all interested parties are currently unknown.”

She named Bremer Bank, National Association, as Prince’s longtime banker, which would be in “the best position of any corporate trust company to protect the Decedent’s assets pending the appointment” of an executor.

According to estate lawyers contacted by USA TODAY, when there is no will, state laws on inheritance prevail. In Minnesota, for instance, half-siblings are treated the same as full siblings for the purposes of inheritance. Nelson’s filings on Tuesday come as a surprise. Estate lawyers and Prince’s former manager, Owen Husney, said they would have expected Prince to have drawn up a will and an estate plan long ago.

Husney said he was too smart to have overlooked something that crucial and he had teams of lawyers, business managers and accountants over the years who would have advised him it was crucial.

So what’s the lesson learned here? Let’s start with you should have a Will.

If you die without a Will, the people who inherit may not be those you want to receive your money or personal property when you die! This could include remote relatives you haven’t spoken to in years. If the Public Administrator is appointed to administer the estate, they will auction or dispose of your intimate personal property and your family may never have an opportunity to receive, or pass on, items which may have wanted them to have.

If you die without a Will in New York, your estate will pass under the laws of the State of New York. When an estate is handled by the Public Administrator, heirs may be required to partake in potentially lengthy and costly legal proceedings to prove their relationships before they can inherit. The Court may also appoint a “Guardian ad Litem” for “unknown” persons. This Guardian ad Litem, along with the Public Administrator, will get a fee from your estate! If your heirs cannot prove their relationship to the Court, your estate may be paid to the State of New York.

Having a Will can ensure those you select inherit from you, reduce expenses, and expedite handling of your estate. It also allows you to nominate an Executor, who is the person who collects your assets and delivers them to your beneficiaries. If you have the right Executor, your estate should move swiftly. Lastly, if you already have a Will and haven’t reviewed it in over two years, now is the time to do so to ensure your current wishes are carried out.

If you have any questions about drafting a Will or revising an existing Will feel free to reach out to me.

The IRS has announced that the basic estate tax exclusion amount for the estates of decedents dying during calendar year 2016 will be $5.45 million, up from $5.43 million for calendar year 2015. This figure is in line with earlier projections.

Also, if the executor chooses to use the special use valuation method for qualified real property, the aggregate decrease in the value of the property resulting from the choice cannot exceed $1,110,000, up from $1,100,000 for 2015.

The increase in the estate tax exclusion means that the lifetime tax exclusion for gifts will also rise to $5.45 million, as will the generation-skipping transfer tax exemption. The annual gift tax exclusion will remain at $14,000 for 2016.

Lawyer for daughters and other heirs alleges business manager misappropriated millions, had been untruthful and was unqualified to be executor.

A lawyer representing a group of BB King’s heirs said on Saturday they would challenge the blues legend’s will and the actions of his longtime business manager-turned-executor of his affairs.

Attorney Larissa Drohobyczer issued a statement early on Saturday, just hours before a private memorial service in Las Vegas.

King was 89 when he died at his home in Las Vegas earlier this month. Fans lined up for a public viewing of his body on Friday. His body will be flown back to Memphis, Tennessee, on Wednesday. A tribute is scheduled that day at WC Handy Park on Beale Street.

A public viewing is scheduled for Friday at the museum that bears his name in Indianola, with a funeral on Saturday at nearby Bell Grove Missionary Baptist church. He will be buried during a private service on the museum grounds.

Drohobyczer’s statement alleged that LaVerne Toney had misappropriated millions of dollars, had been untruthful, had “undue influence” and was unqualified to serve as executor of the estate.

Drohobyczer says she met with five adult King daughters – Patty King, Michelle King, Karen Williams, Barbara King Winfree and Claudette King Robinson – and several other heirs before issuing the statement.

Toney told the Associated Press that she was not going to immediately respond. She said she hoped Saturday’s memorial would be calm, peaceful and respectful.

Hundreds of fans, meanwhile, were expected on Sunday at the 35th annual BB King Homecoming Festival, a free gathering that the legendary bluesman started in his hometown, Indianola.

Performers were scheduled to include a country blues band called the North Mississippi Allstars; a Bentonia, Mississippi, blues guitarist and singer, Jimmy “Duck” Holmes; and a children’s choir based at the BB King Museum and Delta Interpretive Center in Indianola.

King played at the free festival dozens of times. He drew a larger than usual crowd in 2014, which was already billed as the final homecoming performance for the King of the Blues.

While King was alive, organisers were planning this year’s event as a tribute to him. Since his death on 14 May, they have called it a memorial celebration. The festival is held on the grounds of the museum that opened in 2008.

“We certainly will miss his infectious smile and warmth this year, but we have no doubt he would want us to carry on with this tradition,” the museum’s executive director, Dion Brown, said in a statement.

As previously reported, the Social Security Administration (SSA) recently instituted a nationally uniform procedure for review of special needs trusts for Supplemental Security Income (SSI) eligibility, routing all applications that feature trusts through Regional Trust Reviewer Teams (RTRTs) staffed with specialists who will review the trusts for compliance with SSI regulations.

The SSA has also released its Trust Training Fact Guide, which will be used by the RTRTs and field offices when they evaluate special needs trusts. In an article in the July/August 2014 issue of The ElderLaw Report, New Jersey attorney Thomas D. Begley, Jr., and Massachusetts attorney Neal A. Winston, both CELAs, discuss the 31-page guide in detail and caution that while it is a significant step forward in trust review consistency, it contains “a few notable omissions or terminology that might cause review problems.” Following is the authors’ discussion of the problematic areas:

• Structured Settlements. The guide states that additions/augmentations to a trust at/after age 65 would violate the rule that requires assets to be transferred to the trust prior to the individual attaining age 65. It does not mention that the POMS specifically authorizes such payments after age 65, so long as the structure was in place prior to age 65. [POMS SI 01120.203.B.1.c].

• First-/Third-Party Trust Distinction. Throughout the guide, there are numerous references to first-party trust terms or lack of terms that would make the trust defective and thus countable. These references do not distinguish between the substantial differences in requirements for first-party and third-party trusts.

• Court-Established Trusts/Petitions. This issue is more a reflection of an absurd SSA policy that is reflected accurately as agency policy in the guide, rather than an error or omission in the guide itself. This section, F.1.E.3, is titled “Who can establish the trust?” The guide states that creation of the trust may be required by a court order. This is consistent with the POMS. It would appear from the POMS that the court should simply order the trust to be created based upon a petition from an interested party. The potential pitfall described by the guide highlights is who may or may not petition the court to create a trust for the beneficiary. It states that if an “appointed representative” petitions the court to create a trust for the beneficiary, the trust would be improperly created and, thus, countable. Since the representative would be considered as acting as an agent of the beneficiary, the beneficiary would have improperly established the trust himself.

In order for a court to properly create a trust according to the guide, the court should order creation of a trust totally on its own motion and without request or prompting by any party related to the beneficiary. If so, who else could petition the court for approval? The plaintiff’s personal injury attorney or trustee would be considered an “appointed representative.” Would a guardian ad litem meet the test under the guardian creation authority? How about the attorney for the defendant, or is there any other person? If an unrelated homeless person was offered $100 to petition the court, would that make the homeless person an “appointed representative” and render the trust invalid? The authors have requested clarification from the SSA and are awaiting a response.

Until this issue is resolved, it might be prudent to try to have self-settled special needs trusts established by a parent, grandparent, or guardian whenever possible.

• Medicaid Payback/Administrative Fees and Costs. Another area of omission involves Medicaid reimbursement. The guide states that “the only items that may be paid prior to the Medicaid repayment on the death of the beneficiary of the trust are taxes due from the trust at the time of death and court filing fees associated with the trust. The POMS, [POMS SI 01120.203.B.1.h. and 203B.3.a], specifically states that upon the death of the trust beneficiary, the trust may pay prior to Medicaid reimbursement taxes due from the trust to the state or federal government because of the death of the beneficiary and reasonable fees for administration of the trust estate such as an accounting of the trust to a court, completion and filing of documents, or other required actions associated with the termination and wrapping up of the trust.

While noting that the guide, in coordination with training, “is a marked improvement for program consistency for trust review,” Begley and Winston caution advocates that “the guide should be considered as a summarized desk reference and training manual and not a definitive statement of SSA policy if inconsistent with the POMS.”

The need to protect your assets is always at hand. Planning for long-term care with an elder law attorney can help protect your assets for the in home spouse and heirs. Medicaid Planning or Life Care Planning helps to ensure that you or your loved one get the best possible long-term care and the highest possible quality of life, whether at home, in an assisted living facility, or in a nursing home. The following article brings this issue to light.

To Collect Debts, Nursing Homes Are Seizing Control Over Patients.

Lillian Palermo tried to prepare for the worst possibilities of aging. An insurance executive with a Ph.D. in psychology and a love of ballroom dancing, she arranged for her power of attorney and health care proxy to go to her husband, Dino, eight years her junior, if she became incapacitated. And in her 80s, she did.

Mr. Palermo, who was the lead singer in a Midtown nightclub in the 1960s when her elegant tango first caught his eye, now regularly rolls his wife’s wheelchair to the piano at the Catholic nursing home in Manhattan where she ended up in 2010 as dementia, falls and surgical complications took their toll. He sings her favorite songs, feeds her home-cooked Italian food, and pays a private aide to be there when he cannot.

But one day last summer, after he disputed nursing home bills that had suddenly doubled Mrs. Palermo’s copays, and complained about inexperienced employees who dropped his wife on the floor, Mr. Palermo was shocked to find a six-page legal document waiting on her bed.

It was a guardianship petition filed by the nursing home, Mary Manning Walsh, asking the court to give a stranger full legal power over Mrs. Palermo, now 90, and complete control of her money.

Few people are aware that a nursing home can take such a step. Guardianship cases are difficult to gain access to and poorly tracked by New York State courts; cases are often closed from public view for confidentiality. But the Palermo case is no aberration. Interviews with veterans of the system and a review of guardianship court data conducted by researchers at Hunter College at the request of The New York Times show the practice has become routine, underscoring the growing power nursing homes wield over residents and families amid changes in the financing of long-term care.

In a random, anonymized sample of 700 guardianship cases filed in Manhattan over a decade, Hunter College researchers found more than 12 percent were brought by nursing homes. Some of these may have been prompted by family feuds, suspected embezzlement or just the absence of relatives to help secure Medicaid coverage. But lawyers and others versed in the guardianship process agree that nursing homes primarily use such petitions as a means of bill collection — a purpose never intended by the Legislature when it enacted the guardianship statute in 1993.

At least one judge has ruled that the tactic by nursing homes is an abuse of the law, but the petitions, even if they are ultimately unsuccessful, force families into costly legal ordeals.

“It’s a strategic move to intimidate,” said Ginalisa Monterroso, who handled patient Medicaid accounts at the Mary Manning Walsh Nursing Home until 2012, and is now chief executive of Medicaid Advisory Group, an elder care counseling business that was representing Mr. Palermo in his billing dispute. “Nursing homes do it just to bring money.”

“It’s so cruel,” she added. “Mr. Palermo loves his wife, he’s there every single day, and they just threw him to the courts.”

Brett D. Nussbaum, a lawyer who represents Mary Manning Walsh and many other nursing homes, said Mr. Palermo’s devotion to his wife was irrelevant to the decision to seek a court-appointed guardian in July, when the billing dispute over his wife’s care reached a stalemate, with an outstanding balance approaching $68,000.

“The Palermo case is no different than any other nursing home bill that they had difficulty collecting,” Mr. Nussbaum said, estimating that he had brought 5,000 guardianship cases himself in 21 years of practice. “When you have families that do not cooperate and an incapacitated person, guardianship is a legitimate means to get the nursing home paid.”

Guardianshiptransfers a person’s legal rights to make some or all decisions to someone appointed by the court — usually a lawyer paid with the ward’s money. It is aimed at protecting people unable to manage their affairs because of incapacity, and who lack effective help without court action. Legally, it can supplant a power of attorney and a health care proxy.

If you have it to give, you certainly can, but there may be consequences should you apply for Medicaid long-term care coverage within five years after each gift.

The $14,000 figure is the amount of the current gift tax exclusion (for 2014 and 2015), meaning that any person who gives away $14,000 or less to any one individual does not have to report the gift to the IRS, and you can give this amount to as many people as you like. If you give away more than $14,000 to any one person (other than your spouse), you will have to file a gift tax return. However, this does not necessarily mean you’ll pay a gift tax. You’ll have to pay a tax only if your reportable gifts total more than $5.43 million (2015 figure) during your lifetime.

Many people believe that if they give away an amount equal to the current $14,000 annual gift tax exclusion, this gift will be exempted from Medicaid’s five-year look-back at transfers that could trigger a waiting period for benefits. Nothing could be further from the truth.

The gift tax exclusion is an IRS rule, and this IRS rule has nothing to do with Medicaid’s asset transfer rules. While the $14,000 that you gave to your grandchild this year will be exempt from any gift tax, Medicaid will still count it as a transfer that could make you ineligible for nursing home benefits for a certain amount of time should you apply for them within the next five years. You may be able to argue that the gift was not made to qualify you for Medicaid, but proving that is an uphill battle.

If you think there is a chance you will need Medicaid coverage of long-term care in the foreseeable future, see your elder law attorney before starting a gifting plan.